Justice Department argues that formal authority governs DOGE's FOIA status
United States Department of JusticeThrough Solicitor General D. John Sauer, in the July 1, 2026 reply brief
The Justice Department argues that courts should examine delegated legal authority rather than DOGE's practical influence. It says discovery into that influence is improper.
“Formal authority, not informal influence, is what matters.”
Original text
Original text
Other statements by United States Department of Justice in this case
- Justice Department says discovery into an advisory body defeats FOIA's exclusionEarlier: Defended or excused
Where this statement fits
Supreme Court agrees to review court-ordered discovery into whether DOGE is subject to FOIA
CREW sued in February 2025 to make the U.S. DOGE Service process its public-records request under the Freedom of Information Act. The Justice Department argues that USDS is a presidential advisory body outside FOIA and that court-ordered discovery into its authority intrudes on the separation of powers. CREW argues that USDS exercised substantial independent authority and that limited discovery is needed to decide whether FOIA applies. On October 13, 2026, the Supreme Court agreed to review the appeals court order that let most of that discovery proceed.
Source and context
Original text
About this source
The Justice Department argues that formal legal authority determines agency status under FOIA.
Archived copy (opens in a new tab)Original text
About this source
The official docket for the government's petition. It lists the filings by the Solicitor General and by CREW and records the Court's October 13, 2026 grant of review. The case reached the Court from the D.C. Circuit's July 14, 2025 order denying mandamus in large part.
Archived copy (opens in a new tab)Before the quotation
The brief disputes CREW's reliance on an Office of Legal Counsel opinion about an entity's operations.
After the quotation
It says courts should look to the formal authorities that created the entity.
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
The case tracks the government's position that advisory USDS should not face court-ordered discovery into FOIA coverage. The department supports that position by arguing that formal authority controls.
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More from this case
Read the full caseCREW says the government's rule against discovery conflicts with FOIA's text
Citizens for Responsibility and Ethics in Washington
“Undisputed facts in the public record—including the President’s statements—confirmed that USDS was wielding enormous independent authority across the federal government. ... The government’s proposed rule is impossible to square with statutory text, and it would be ripe for abuse.”Read statement
Donald K. Sherman calls the government's petition a delay tactic
“This appeal is an obvious delay tactic to keep the American public in the dark about DOGE’s reckless operation and disastrous impact. The lower courts have categorically ruled that CREW is entitled to discovery, and rather than accept those rulings and provide the Court and the public with long overdue transparency, DOGE is trying to dodge disclosure for as long as possible.”Read statement
American Oversight says the Supreme Court is shielding DOGE from scrutiny
American Oversight
“President Trump continues to use the Supreme Court as a shield — protecting DOGE from accountability and hindering the public’s right to know ... The Court didn’t dispute that DOGE may be violating transparency laws — it merely objected to how the lower court was trying to uncover the truth.”Read statement
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The Dispute Index. "Justice Department argues that formal authority governs DOGE's FOIA status". First published: 2026-10-29. Last updated: 2026-10-29. https://disputeindex.com/events/7185-the-justice-department-argues-that-courts-should-examine